RELIGION AND LAW

2.2 JURISPRUDENCE

Submitted By: -
MANAS NEMA

UID: -UG-19-62

1ST Year B.A. LL. B(Hons.)

Submitted to-

Prof. SIRISH L. DESHPANDE

National Law University, Nagpur

 Table Of Contents

Chapter- I
Introduction…………………………………………………………………………………..3
Aims and Objectives……………………………………………………………………….....3
Research Methodology……………………………………………………………………….4
Scope and Limitations………………………………………………………………………..4
Chapter- II
Islamic Law…………………………………………………………………………………...5
Roman Law…………………………………………………………………………………...6
Sources and Forms of Roman Law……………………………………………………….....7
Chapter – III
Religion in India ……………………………………………………………………………..9
Law in India…………………………………………………………………………………10
Personal Laws in India……………………………………………………………………..11
Chapter- IV
Conclusion…………………………………………………………………………………...12
Bibliography………………………………………………………………………………...12

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 Chapter- I
Introduction
Religion is the very basis of human life which is not just following a belief but it is also a the
way of living because the followers of a particular religion follows a definite kind of livelihood
and with this moral duty of following certain rules the religion enters the boundary of law
whereby a person is compelled to follow or not to break the rules decided by a state. Hence it
is very evident that the law and religion are dependent on each other because before the concept
of state or democracy, people were bound to follow the religious duties and can claim religious
rights. Thus, in this way religion was playing a very vital role of maintaining law and order in
ancient societies at different parts of the world. This research paper is going to deal with the
legal history of world i.e. how the law evolved apart from religion in different parts of the
world, how the evolution of law differs at different regions, like Islamic Law, Roman Law,
Christian Law and after that this paper is going to concentrate on evolution and development
of Hindu Law in India, to discuss how the Hindu Law as a way of living affected the evolution
of law and how it lead to the formation of personal laws for every religion in India and who
are the people in society governed by Hindu Law.

Aim

The aim of this research is to study the evolution of Laws from Religion across different regions
of world.

Objectives

The main objectives of this research are:

 To understand how religion and laws are somehow dependent on each other.
 To study evolution of various laws across different regions (Islamic law, Roman law,
Christian law etc.)
 To study evolution and development of Hindu Law and other personal laws from
religion in India.

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Research Methodology

The research method so used to write this research paper is doctrinal. It is doctrinal in the sense
that it comes from the credible sources herein, books, articles published in renowned and
justified web pages and journals. The project also uses deductive reasoning for research. The
source of information also consists of theoretical knowledge the researcher possesses as a law
student. The sources so used are secondary in nature and can be treated as library-based
experiment. To make the research paper, the instruction given by the Research Supervisor has
been followed. The whole research paper is done in an organized way.

Scope and Limitations

The limitation of the study is those characteristics of design or methodology that impacted or
influenced the application or interpretation of the results of the researcher’s study. The research
is limited to educational purposes only. Only that information could be furnished which was
available and the availability of which could be authenticated. The researcher was unable to do
a thorough empirical research due to non-availability of proper resources, time and restrictions
to the domain of research.

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 Chapter- II

Let us begin with Islamic Laws one of the major legal system that have influenced modern
legal system to a great extent. There are many similarities in between Islamic law and modern
legal system across the different part of the world which suggest that religion and law are two
veiled allies and cannot be separated. Same is the case with Roman Laws, the influence of
Roman Laws on development of modern laws including international law, natural law
(fundamental rights and basic human rights), and common law is undeniable.

Islamic Law

One of the major legal systems developed during the Middle Ages was Islamic law and
jurisprudence, now the third most common legal system after the civil law and common law
systems. The methodology of legal precedent and reasoning by analogy (Qiyas) used in early
Islamic law was similar to that of the later common law system. 1 According to Justice Gamal
Moursi Badr, Islamic law is like common law in that it "is not a written law" based entirely on
the Qur'an but that the "provisions of Islamic law are to be sought first and foremost in the
teachings of the authoritative jurists" (Ulema), hence Islamic law may "be called a lawyer's law
if common law is a judge's law." This was particularly the case for the Maliki school of Islamic
law active in North Africa, Islamic Spain and the Emirate of Sicily.2

A number of important legal institutions were developed by Islamic jurists during the classical
period of Islamic law and jurisprudence, known as the Islamic Golden Age, dated from the 7th
to 13th centuries. One such institution was the Hawala, an early informal value transfer system,
which is mentioned in texts of Islamic jurisprudence as early as the 8th century. Hawala itself
later influenced the development of the Aval in French civil law and the Avallo in Italian law.
The "European commenda" limited partnerships (Islamic Qirad) used in civil law as well as
several conceptions of Res Judicata may also have origin with Islamic Law.3

Several fundamental common law institutions may have been adapted from similar legal
institutions in Islamic law and jurisprudence, and introduced to England after the Norman
conquest of England by the Normans, and also by Crusaders during the Crusades. In particular,

1
Watanabe, Lisa. (2012). The Possible Contribution of Islamic Legal Institutions to the Emergence of a Rule of
Law and the Modern State in Europe. 10.1057/9780230393219_4. (Accessed on 10/02/2020)
2
http://nasrani.net/2007/02/16/st-thomas-tradition-the-indian-sojourn-in-foreign-sources/ (Accessed on
10/02/2020)
3
Layish, A. (2014). Islamic Law in the Modern World, Islamic Law and Society, 21(3), 276-307.
doi: https://doi.org/10.1163/15685195-00213p04

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the "royal English contract protected by the action of debt is identified with the Islamic Aqd,
the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury
is identified with the Islamic Lafif" in Maliki law. The English trust and agency institutions in
common law were also most likely adapted from the Islamic Waqf and Hawala institutions
respectively during the Crusades.

Other English legal institutions such as "the scholastic method, the license to teach", the "law
schools known as Inns of Court in England and Madrasas in Islam" and the "European
commenda" (Islamic Qirad) may have also originated from Islamic law. The methodology of
legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and
common law systems. These similarities and influences have led some scholars to suggest that
Islamic law may have laid the foundations for "the common law as an integrated whole".4

European Law

Roman Laws

Roman law was heavily influenced by Greek teachings. It forms the bridge to the modern
legal world, over the centuries between the rise and decline of the Roman Empire. Roman
law, in the days of the Roman republic and Empire, was heavily procedural and there was no
professional legal class. Precedents were not reported, so any case law that developed was
disguised and almost unrecognised. Each case was to be decided afresh from the laws of the
state, which mirrors the unimportance of judges' decisions for future cases in civil law
systems today. During the 6th century AD in the Eastern Roman Empire, the Emperor
Justinian codified and consolidated the laws that had existed in Rome so that what remained
was one twentieth of the mass of legal texts from before. This became known as the Corpus
Juris Civilis.

Roman law was lost through the Dark Ages, but in the 11th century AD scholars in the
University of Bologna rediscovered the texts and were the first to use them to interpret their
own laws. Medieval European legal scholars began researching the Roman law and they
began using its concepts and prepared the way f5or the partial resurrection of Roman law as
the modern civil law in a large part of the world.

4
Nahed Samour, Is there a Role for Islamic International Law in the History of International Law?, European
Journal of International Law, Volume 25, Issue 1, February 2014, Pages 313–
319, https://doi.org/10.1093/ejil/chu012
5
http://www.legalservicesindia.com/article/1852/Law-and-Religion.html

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The influence of Roman law on modern legal systems has been immense: several legal
systems of the world (including the civil law system of Europe) have been shaped
significantly, directly or indirectly, by the concepts of Roman law. Today, there are two great
legal systems of European origin in the world — the common law of England and the civil
law of continental Europe shaped largely by the ‘revived’ Roman law. The common law is
the basis of the legal systems of most English-speaking nations.

Sources and Forms of Roman Law

In terms of sources of written law, the Twelve Tables (c.451 BC) were both a ‘statute’ (lex)
and a code, an early example of the codification of Roman Law. The law of contract, deposit
and sale, elements of which are termed the law of obligations whereby private agreements are
recognised by the state and legally enforceable, can be traced back to the Twelve Tables. The
concept of the consensual contract of sale (emptio venditio) was one of the great Roman
inventions. There were three broad categories of Roman law. The ius civile was the law
which emanated from statutes (leges), plebiscites, decrees of the senate, enactments of the
emperor and from the authority of the jurists, and originally was the body of law that
applied to the citizens of Rome. The term ‘civil law’ comes from ius civile. This is what we
would designate as ‘positive law’ today. The ius gentium referred both to the body of law that
applied to ‘foreigners’ in their engagement with the citizens of Rome and to the law
governing the relations of Rome with other states. Ius gentium referred to the law of nations
and also to the laws common to all mankind. These were human-made laws but, as stated,
“common to all mankind”. Today, we would designate ius gentium as (in part) ‘international
law’. Rules of diplomacy and state relations were governed by the ius gentium. Laws relating
to commercial trade and commercial practices were also comprised in the ius gentium —
what we call ‘private international law’ today. The ius commune was the general law
common to all, the law which was binding on all peoples, including Roman citizens.6

In Roman jurisprudence, and more particularly during the ‘revival’ of Roman law, ius
naturale developed as the natural law. It included everything beyond the power of human
law-making. The idea of ‘natural law’ (as we know it today) was influenced by and
developed from the ius naturale which, over time, came to include the concept of
fundamental human rights, i.e. those rights inherent to man and which cannot be taken away
by human law. The writings of Cicero (106-43 BC), (court advocate and politician before the

6
https://dailyhistory.org/How_has_ancient_Rome_influenced_European_law%3F (Accessed on 13/ 02/2020)

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Christian era) influenced the development of the ius naturale. There are other more
specific contributions that Roman law made to the law of England — the home of the
common law. The principles enshrined in what is termed Habeas Corpus — a remedy
where a person is detained unlawfully — and several principles of the law of torts are
of Roman origin.7 The maxim and legal concept of volenti non fit injuria (the voluntary
assumption of risk) is again another principle of law direct from Ulpian. A significant amount
of the writings of Ulpian were ‘codified’ in Justinian’s Institutes. Roman law was not
confined in its genesis to the City of Rome or the Italian peninsula but to the genius of minds
from many lands, and it has left a great legacy in the legal systems of the world. The concepts
inherent in the legal order comprised in the ius naturale and ius gentium, intended to extend
beyond national borders, are today the cornerstones of human rights law and international law
throughout the world. The influence of Roman law on the development of the common law is
equally undeniable.8

7
Crittenden, Albert R. "Roman Law in Modern Life and Eudcation." The Classical Journal 15, no. 3 (1919):
148-54. Accessed February 14, 2020. www.jstor.org/stable/3287837.

8
https://europeanconservative.com/2019/05/the-contribution-of-roman-law-to-modern-legal-systems/ (Accessed
on 14/02/2020)

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 Chapter- III

Religion and Law in India

Religion in India

India is a country of religious diversity and religious tolerance is established in both law and
custom. Throughout the history of India, religion has been an important part of the country's
culture. A vast majority of Indians associate themselves with a religion.

Indian census has established that Hinduism accounts for 80.5% of the population of India. The
second largest religion is Islam, at about 13.4% of the population. The third largest religion is
Christianity at 2.3%. The fourth largest religion is Sikhism at about 1.9% of India's population.9
This diversity of religious belief systems exiting in India today is a result of, besides the
existence and birth of native religions, assimilation and social integration of religions brought
to the region by traders, travelers, immigrants, and even invaders and conquerors. Stating the
hospitality of Hinduism towards all other religions, John Hardon writes, “However, the most
significant feature of current Hinduism is its creation of a non-Hindu State, in which all
religions are equal.”

Other native Indian religions are Buddhism and Jainism. Ancient India had two philosophical
streams of thought, the Shramana religions and the Vedic religion, parallel traditions that have
existed side by side for thousands of years. Both Buddhism and Jainism are continuations of
Shramana traditions, while modern Hinduism is a continuation of the Vedic tradition. These
co-existing traditions have been mutually influential. Zoroastrianism and Judaism also have an
ancient history in India and each has several thousand Indian adherents.10

India's religious tolerance extends to the highest levels of government. The Constitution of
India declares the nation to be a secular republic that it must uphold the right of citizens to
freely worship and propagate any religion or faith (with activities subject to reasonable
restrictions for the sake of morality, law and order, etc). The Constitution of India also declares
the right to freedom of religion as a fundamental right.

Citizens of India are generally tolerant of each other's religions and retain a secular outlook,
although inter-religious marriage is not widely practiced. Inter-community clashes have found

9
https://www.census2011.co.in/religion.php (Accessed on 15/02/2020)
10
"History of Religions in India" available at http://www.indohistory.com/religions.html. (Accessed on
14/02/2020)

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little support in the social mainstream, and it is generally perceived that the causes of religious
conflicts are political rather than ideological in nature.11

Law in India

The preamble to the Constitution of India proclaimed India a "sovereign socialist secular
democratic republic". The word secular was inserted into the Preamble by the Forty-second
Amendment Act of 1976. It mandates equal treatment and tolerance of all religions. India does
not have an official state religion; it enshrines the right to practice, preach, and propagate any
religion. No religious instruction is imparted in government-supported schools. In S. R.
Bommai vs. Union of India, the Supreme Court of India held that secularism was an integral
tenet of the Constitution.

The right to freedom of religion is a fundamental right according to the Indian Constitution.
The Constitution also suggests a uniform civil code for its citizens as a Directive Principle.
However, this has not been implemented until now as Directive Principles are Constitutionally
unenforceable. The Supreme Court has further held that the enactment of a uniform civil code
all at once may be counterproductive to the unity of the nation, and only a gradual progressive
change should be brought about in Pannalal Bansilal v/s State of Andhra Pradesh, 1996. In
Maharishi Avadesh v Union of India (1994) the Supreme Court dismissed a petition seeking
a writ of mandamus against the government to introduce a common civil code, and thus laid
the responsibility of its introduction on the legislature. Major religious communities continue
to be governed by their own personal laws. Personal laws exist for Hindus, Muslims,
Christians, Zoroastrians, and Jews. The only Indian religion exclusively covered under the
secular ("civil") law of India is Brahmoism starting from Act III of 1872. For legal purposes,
Buddhists, Jains and Sikhs are classified as Hindus and are subject to Hindu personal law.

Indian family law is complex, with each religion having its own specific laws which they
adhere to. In most states, registering of marriages and divorces is not compulsory. There are
separate laws governing Hindus, Muslims, Christians, Sikhs and followers of other religions.
The exception to this rule is in the state of Goa, where a Portuguese uniform civil code is in
place, in which all religions have a common law regarding marriages, divorces and adoption.

This system of distinct laws for each religion began during the British Raj when Warren
Hastings in 1772 created provisions prescribing Hindu law for Hindus and Islamic law for

11
Mahmood, T., 2006. Religion, law, and judiciary in modern India. BYU L. Rev., p.755.

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Muslims, for litigation relating to personal matters. However, after independence, efforts have
been made to modernize various aspects of personal law and bring about uniformity among
various religions. Areas in which reform has occurred recently are custody and guardianship
laws, adoption laws, succession law and laws relating to domestic violence and child marriage.

Mohammedan law

Indian Muslims' personal laws are based on the Sharia, which is partially applied in India. The
portion of the fiqh applicable to Indian Muslims as personal law is termed Mohammedan law.
Despite being largely uncodified, Mohammedan law has the same legal status as other codified
statutes. The development of the law is largely on the basis of judicial precedent, which in
recent times has been subject to review by the courts. The contribution of Justice V.R. Krishna
Iyer in the matter of interpretation of the statutory as well as personal law is significant.12

Christian Law

As for Christians, there is a distinct branch of law known as Christian Law which is mostly
based on specific statutes. Christian law of Succession and Divorce in India have undergone
changes in recent years. The Indian Divorce (Amendment) Act of 2001 has brought in
considerable changes in the grounds available for divorce. By now Christian law in India has
emerged as a separate branch of law. It covers the entire spectrum of family law so far as it
concerns Christians in India. Christian law, to a great extent is based on English law but there
are laws that originated on the strength of customary practices and precedents. Christian family
law has now distinct sub branches like laws on marriage, divorce, restitution, judicial
separation, succession, adoption, guardianship, maintenance, custody of minor children and
relevance of canon law and all that regulates familial relationship.

Hindu Law

As far as Hindus are concerned there is a specific branch of law known as Hindu Law. Though
the attempt made by the first parliament after independence did not succeed in bringing forth a
Hindu Code comprising the entire field of Hindu family law, laws could be enacted touching
upon all the major areas affecting family life among Hindus in India. Even Jains are covered
for most part.13

12
Ahmad, Furqan. "UNDERSTANDING ISLAMIC LAW IN INDIA: AN ASSESSMENT OF THE
CONTRIBUTION OF JUSTICE V.R. KRISHNA IYER: A TRIBUTE." Journal of the Indian Law Institute57,
no. 3 (2015): 307-32. (Accessed February 13, 2020) www.jstor.org/stable/44782785.
13
http://www.legalservicesindia.com/law/article/997/15/Hindu-Muslim-Christian-Personal-Laws-in-India

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 Chapter- IV

Conclusion

At the end it can be concluded that the law and religion are integral part of each other and the
religion is very basis of formulation of law anywhere in the world from ancient to modern
world. It is just not proved by Hindu laws but also evident from several other personal laws. In
context of India, even today religious values and traditions continue to have a strong influence
on society. This religious aspect remains duly reflected in the Constitution and the quickly
growing body of national laws. It has also not remained outside the ambit of judicial activism
generally witnessed in India.

Bibliography

Books Referred

 The Constitution of India

 Ahmad, Furqan. "UNDERSTANDING ISLAMIC LAW IN INDIA: AN
ASSESSMENT OF THE CONTRIBUTION OF JUSTICE V.R. KRISHNA IYER: A
TRIBUTE." Journal of the Indian Law Institute57, no. 3 (2015)

Articles Referred

 Nahed Samour, Is there a Role for Islamic International Law in the History of
International Law, European Journal of International Law, Volume 25, Issue 1,
February 2014
 Watanabe, Lisa. (2012). The Possible Contribution of Islamic Legal Institutions to the
Emergence of a Rule of Law and the Modern State in Europe.
10.1057/9780230393219_4

Sites Referred

 http://www.legalservicesindia.com/law/article/997/15/Hindu-Muslim-Christian-
Personal-Laws-in-India
 http://www.legalservicesindia.com/article/1852/Law-and-Religion.html
 https://europeanconservative.com/2019/05/the-contribution-of-roman-law-to-modern-
legal-system

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